Baldwin v. McClelland , 50 Ill. App. 645 ( 1893 )

Opinion of the Court,

Shepard, J.

These two causes, one a writ of error, and the other an appeal, between the same parties, have been submitted on the abstract and briefs' filed in the proceeding in error.

The writ of error is from a judgment of the Circuit Court rendered at the September term, 1891, thereof, and the appeal is from certain orders of the-same court entered at the June term, 1893, thereof, in the same cause.

The assigned errors are the taking of default, assessing damages and rendering judgment against the defendant below, who is the plaintiff in error, and appellant in the respective causes here pending, at the September term, 1891, without notice or rule to plead; and the refusal to correct the record, and vacate the default and judgment of said term.

The suit was begun by attachment, and the writ served on the Washington Park Club as garnishee.

The notice by publication to the defendant was to the August term, 1891. The declaration was not filed until August 20, 1891, which was too late for the August term of the court.

If we may look at the transcript for that purpose, we will find that there was filed in said cause, on September 23, 1891, a paper in words as follows, omitting the title of the cause and signature of attorneys:

“We hereby enter the appearance of the above defendant, and our appearance as attorneys for defendant.”

With the same limitation, we will find in the transcript a notice filed on the same day, that on that day the defendant’s attorneys will move the court for a rule on the plaintiff to file a more specific bill of particulars, and a bond for costs in the cause, together with an acceptance of such notice by the attorneys for the plaintiff; and we will also find an order entered on that day on the motion of defendant by his attorneys ruling the plaintiff to file a more specific bill of particulars within ten days, and on motion of plaintiff’s attorneys leave to file a bond for costs instcmter; and it will be further seen that a bond for costs was filed by plaintiff on said September 23d, and that on September 25 th there was filed by plaintiff what is called a supplemental bill of particulars.

Proceeding to examine the transcript under the same limitation as to our right to look at it for such purposes, we will fail to find therein that any notice was given by the plaintiff to the defendant that said rule with reference to filing a more specific bill of particulars had been complied with, or that any order of court was ever entered finding that said rule had been complied with and discharging said rule; or any notice by plaintiff to defendant that a default for want of a plea, or any other cause, would be asked for, or that an assessment of damages would be asked and judgment applied for.

It does appear, however, and we may without question look at such proceedings as a part of the record proper, that on October II, 1891, the default of defendant was entered for want of a plea; that the court proceeded to assess the plaintiff’s damages and entered judgment in his favor and against the defendant, in personam, for the sum of thirty-four hundred and twenty-three dollars and six cents.

The day on which these last proceedings were had and judgment entered, was Saturday, the last day of the September term, 1891, of the court.

At the next term the defendant moved to set aside the default and judgment, and at the ¡November term, 1891, moved to correct the record of the judgment. At the June term, 1893, both motions were overruled.

¡Neither the defendant nor his attorneys were present, or knew of the judgment, until after the term had passed. Hence the defendant did not and could not preserve any exceptions to such proceedings, and no bill of exceptions could be made up at a subsequent term. Morton v. Bailey, 1 Scam. 213; Railroad v. Ward, 16 Ill. p. 531-2.

There is a marked barrenness of authoritative statement, in this State, as to what a common law record that preserves itself, without the aid of a bill of exceptions, consists of. ¡None has been pointed out to us by counsel and we have found nothing in the utterances of our Supreme Court that seems to settle the question. What appears by “ the record ” “ on the face of the record,” “ from an entry on the record,” and “ as shown by the record,” has not been infrequently mentioned by both the Supreme Court and the Appellate Courts.

But as to what the technical record consists of is nowhere stated with so near an approach to accuracy as by Mr. Justice McAllister in Van Cott v. Sprague, 5 Ill. App. 99.

For errors appearing in the record a bill of exceptions is not necessary. Gallimore v. Dazey, 12 Ill. 142; Van Dusen v. Pomeroy, 24 Ill. 289.

For what is not a part of a record proper, and must therefore be preserved by bill of exceptions in order to become so, the large number of cases collected in the brief of defendants in error in Blair v. Ray, 103 Ill. 615, afford a great variety of illustration. See also, Practice Act, Chap. 110 Rev. Stat., Secs. 60, 61 and 62.

In the statement of Mr. Justice McAllister in Van Cott v. Sprague, supra, one very important omission, that of the verdict, was made, and the statement should also be broadened to include all pleadings, by whatsoever • name known. Where jurisdiction over the person, or the thing, is acquired by other than personal service of process issuing out of the court, as, by appearance, or by publication under the statute, whatever confers the jurisdiction should also, by analogy, be considered a part of the record proper, and not necessary to be preserved by bill of exceptions.

If it be that in the case of a notice by publication to a defendant in an attachment suit, the filing in the cause of a mere paper writing reciting the entry of the defendant’s appearance by attorneys, but Avith no order of appearance entered thereon, and folloAved by no plea, constitutes a part of the record proper in the cause, as the return of the sheriff on process would, then Ave have in the record in this cause, all that was needed to confer jurisdiction upon the court to enter a judgment in personam, as Avas done, against the defendant.

Ho question is raised as to the sufficiency of the appearance filed to confer jurisdiction upon the court over the person of the defendant, but one of the principal contentions is that the appearance of the defendant having been filed, he could not be placed in default for want of a plea, Avithout a rule to plead having been first entered against him. And it is also contended that inasmuch as a rule had been entered against the plaintiff to file a more specific bill of particulars, the defendant could not be required to plead until after notice to him of compliance with such rule, nor until after a discharge thereof.

Undoubtedly the old rule at common law required notice to the defendant to plead before judgment could be entered against him for want of a plea. 3 Chitty’s Practice, 497-8; Tidd’s Practice, 473; Grraham’s Practice, 219 and 785.

And it may be said to be a matter of serious doubt, notwithstanding a not unusual practice prevailing to the contrary, whether default for want of a plea may regularly be entered after appearance, without notice and a rule to plead.

For want of appearance the court may give judgment by default, and time to plead, after appearance, may be alloAved by the court within- reasonable and necessary limits. Rev. Stat. Ill., Chap. 110, Secs. 28 and 29.

But we are not aware of any statutory change of the common law rule requiring notice and a rule to plead, after appearance, before default may be taken for want of a plea.

We are, however, not at liberty to examine anything but the bill of exceptions to observe either the fact or absence of such notices, motions, rules and orders, and in the absence of a bill of exceptions showing the proceedings, other than what appears on the record proper, we are bound to presume the default and judgment regular.

In Faas v. O’Connor, 6 Ill. App, 593, Mr. Justice Bailey said:

“ In Hermann v. Pardridge, 79 Ill. 471, and Kern v. Strasberger, 71 Ill. 303, in both of which cases the objections to the judgment arose directly on appeal, it was held that where it appears that the court had jurisdiction both of the person of the defendant and of the subject-matter of the litigation, and rendered judgment, and there is no bill of exceptions, the judgment will be presumed to be in all respects regular.”

It was also held in Iglehart v. Pitcher, 17 Ill. 307, that the presumption in favor of judgments would extend to and include due notices and rules to support the default, as well as that sufficient evidence was produced and heard to sustain the finding and judgment; and that proof of a rule to plead, and the service of a copy of the declaration, then required, need not appear. That was a case where error was assigned that the court had not jurisdiction to render judgment, because it did not appear by the record that the defendant had been served with a copy of the declaration and rule to plead, as required by the rules of practice then prevailing. And it was held that the service of such copies was not a part of the record, and their absence from the record could not be taken as evidence that they were not served, and would raise no presumption against the correctness and validity of the judgment.

In Rich v. Hathaway, 18 Ill. 548, it is said: “Every intendment will be indulged in favor of the legality of the proceedings when they depend upon the existence of matters of fact, unless their existence is denied by the record or bill of exceptions. The service and notice of an intended motion or step * * * is not a matter of record. They must be so made by bill of exception. Their absence from the record is no evidence that notice was not given.”

According to the statement of that case made by the reporter, a demurrer to the declaration had been filed.

The cause was called up for hearing without notice to the defendant, or his attorneys, and the ■ demurrer was sustained. Thereupon the plaintiff took leave to amend his declaration, which was done, and a rule entered that the defendant should plead by the next morning, and two days later judgment of default was entered against the defendant for want of a plea.

At the next term the defendant moved to set aside the default, and filed affidavits setting up want of notice of the proceedings upon the demurrer and subsequent thereto, and of the rule to plead; also of a good defense; and the court overruled the motion to set aside the default, which action was sustained by the Supreme Court.

Again, in Hermann v. Pardridge, supra, in speaking of the two grounds of reversal urged on the appeal, the court said:

“ Both depend upon matters which the entries alone, to be made by the clerk, can not disclose. ■ They can only be made to appear of record by a proper bill of exceptions. * - * * There being jurisdiction both of the person of the defendant and of the subject-matter of the litigation, we must presume that the judgment is, in all respects, regular, and that the only objections urged have no foundation in the facts.” If a contrary rule concerning presumptions in favor of judgments by default prevails in other tribunals (Black on Judgments, Sec. 93), we feel bound to follow what seems to be the established rule in this State.

Both judgments will therefore have to be affirmed.

Gaby, J.

I concur under protest. The rule ought to be that whatever is necessarjr to the regularity of the proceedings, should appear on the record proper.

But I read the decisions of this State as going to that length on presumptions that this court is concluded. Matson v. Davis, 35 Ill. App. 78; Acme Copying Co. v. McLure, 41 Ill. App. 397.